Industrial Conflict

• Pages: 598-691

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Chapter : Industrial Conict

: INDUSTRIAL PLURALISM AND INDUSTRIAL CONFLICT

As we have seen in the preceding chapter, labour boards have increasingly regulated the

bargaining process in recent years. Nevertheless, under general labour relations legislation

everywhere in Canada, the ultimate means of dispute resolution is the use of economic

sanctions. Thus, the ability to maintain or withstand a work stoppage remains central to col-

lective bargaining. If a union cannot win a strike or lockout, it will probably not get a favour-

able agreement, and it might not get an agreement at all. In the end, though, only a small

minority of bargaining rounds actually lead to strikes or lockouts. For example, between 

and , only  percent of public sector and . percent of private sector negotiations for

major collective agreements resulted in a work stoppage.

Although the prospect of economic sanctions is generally considered to be a crucial part

of the bargaining process, a primary factor driving the evolution of Canadian labour law

has been a desire to limit what are seen as the detrimental eects of strikes. The earliest

eorts at labour regulation in Canada involved a unitary approach which tended simply to

repress strikes, leaving employees unable to withdraw their labour collectively. When this

approach proved incapable of containing industrial unrest, Canadian governments (from

the late s on) began to move toward a pluralist approach, relying more on dialogue and

accommodation as the principal road to industrial peace.

Over the years, this pluralist approach came to predominate in Canadian public policy.

Negotiation and compromise are encouraged, while repression is used more sparingly, in

the background. Employers are required to recognize and bargain with certied bargaining

agents, and recourse to economic sanctions is hedged about with a set of legal restrictions.

On occasion, non-binding third-party intervention by mediators, conciliators, fact nders,

and others, pushes the parties toward agreement.

The Supreme Court of Canada conrmed in Saskatchewan Federation of Labourv Saskatch-

ewan, []  SCR  (which is considered fully in Chapter ) that the right to strike is

included in the Charter right to freedom of association. Prior to the constitutionalization

of the right to strike, some analysts argued that legislatures should ban strikes altogether

and substitute third-party interest arbitration of the terms of employment (see, for example,

David Beatty’s criticisms of collective bargaining in “Ideology, Politics and Unionism,”

excerpted in Chapter , Section :). Even before the decision in Saskatchewan Federa-

tion of Labour, Canadian policymakers rejected this option, except in “essential services”

and, in some provinces, in other public services. Canada has frequently been criticized by

the International Labour Organization’s (ILO) Committee on Freedom of Association and

Industrial Pluralism and Industr ial Conict | :

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Committee of Experts for banning or limiting public strikes and ordering interest arbitration

instead. Essential services legislation and other restrictions on the right to strike are still

possible, but if challenged, will now be subject to the Court’s analysis in Saskatchewan Fed-

eration of Labour.

The Canadian government’s rejection of a general system of interest arbitration, com-

bined with a continuing desire to prevent industrial disruption, has led to persistent tension

in Canadian labour regulation. On the one hand, governments try to push the parties to

settle their disputes without strikes, by imposing a series of hurdles that must be overcome

before economic sanctions can lawfully be invoked. On the other hand, governments gener-

ally (though decreasingly) disclaim any inuence over the content of settlements.

This distinction between process and outcome is dicult to maintain. In Chapter , we

saw that labour relations boards, despite misgivings, do to some extent scrutinize substan-

tive bargaining positions in administering the duty to bargain, and in rst-contract arbitra-

tion they do indeed impose collective agreement terms. Even when boards do not rule on

the parties’ bargaining positions, the regulation of the process cannot help but inuence

the outcome. In the following works on strike regulation, you will nd echoes of the debate

on the purpose and scope of the duty to bargain. In the pluralist literature, the discussion of

strike law is frequently cast in terms of furthering equality of bargaining power. A particular

regulatory structure is said to be justied because it promotes equality of bargaining power;

another is rejected because it would tip the balance excessively.

The following excerpt sets out the classic pluralist conception of the role of strikes in

collective bargaining.

Paul Weiler, Reconcilable Dierences: New Directions in Canadian Labour Law (Toronto: Carswell,

) at –

It is understandable that there is growing exasperation among the press, the politicians

and the general public, about Canada’s dismal record of industrial unrest. Nor is it any

consolation to explain that much of the recent trend is due to the fact that many of our

public sector bargaining relationships were new and immature. Loss of public services

due to strike action is not the answer to the problem; to many people that is the problem.

We hear again the refrain that economic warfare is an outmoded and atavistic method

of settling labour disputes. The law must provide a better way to replace such crude,

primitive methods of self-help. We have already banned strike action as the means of

settling recognition issues or contract grievances. Why should we not complete the circle

and ban strikes about negotiating disputes as well, at least in a wide range of important

industries? And of course, no one would want to single out just the trade unions for such

restrictive action. It is assumed that lockouts by employers would be prohibited as well.

I dare say that there would be near unanimous consensus among the profession-

als in labour-management relations that that kind of proposal is terribly unwise. They

believe that there is, if not a logical necessity, at least a natural anity between the right

to strike and the system of free collective bargaining. Although the elements in that

argument are rather commonplace, perhaps it is still worthwhile to spell them out, as a

prelude to my discussion of the legal meaning of the right to strike.

CHAPTER : INDUSTRIAL CONFLICT

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The basic assumption of our industrial relations system is the notion of freedom of

contract between the union and the employer. There are powerful arguments in favour

of that policy of freedom of contract. We are dealing with the terms and conditions

under which labour will be purchased by employers and will be provided by employees.

The immediate parties know best what are the economic circumstances of their relation-

ship, what are their non-economic priorities and concerns, what trade-os are likely to

be most satisfactory to their respective constituencies. General legal standards formu-

lated by government bureaucrats are likely to t like a procrustean bed across the variety

and nuances of individual employment situations. Just as is true of other decisions in

our economy — for example the price of capital investment or of consumer goods and

services — so also unions and employers should be free to x the price of labour at the

level which they nd mutually acceptable, free of intrusive legal controls.

The freedom to agree logically entails the right to disagree, to fail to reach an accept-

able compromise. Most of the time good faith negotiation does produce a settlement at

the bargaining table, often without a great deal of trouble. But often enough it does not;

and of course it is the failures which generate the visible tumult and shouting. And at

that point the collective bargaining system diverges sharply from other components in

the market economy.

For instance, if a customer does not like the price for the sale of a car, or a business-

man does not like the terms for a bank loan, the assumption is that each will go his own

separate way and try to nd a better deal elsewhere. The fact that they have reached a

deadlock in their individual dealings is not a social problem. That competition among

buyers and sellers, lenders and businesses, et al., is the necessary lubricant in the oper-

ation of a market economy. But that solution is totally at odds with the system of free

collective bargaining. It is precisely because we do not want to allow the employer to

quote his price for labour, and to invite his employees to accept those terms or go else-

where (that is, ‘to take it or leave it’), that as a matter of public policy we have fostered

the development of collective organization of the employees, to provide a countervailing

lever to the bargaining position of their employers (especially of large organizations and

aggregations of capital). The whole point of a union is to act as a cartel in the supply of

labour, to deny the employer an alternative source, and to force it to reach a mutually

acceptable agreement about the terms and conditions of employment. The tacit premise

underlying the system is that both employment status and collective bargaining relation-

ship will persist indenitely through one series of negotiations after another. And it is

precisely for that reason that the means of resolving deadlocks in negotiations between

union and management becomes a serious social issue.

At the same time we must appreciate the very dierent perspectives of the employer

and the union on that subject. The employer typically has no direct and immediate inter-

est in successfully getting the new contract settlement. That settlement almost invariably

will provide for compensation increases, often in sizable amounts. All other things being

equal, the employer would just as soon stick with the status quo. (Indeed in an inating

economy unchanged money wage rates mean real gains to the employer and real losses

to its employees.) It is the union which ordinarily must take the initiative to move negoti-

ations o dead centre. True, that is not always the case. Sometimes the status quo may be